IMPORTANT POINT
The court established that procedural compliance is crucial in drug-related cases, and significant lapses can warrant bail despite statutory restrictions.

ORDER :

Farjand Ali, J.

1. The jurisdiction of this court has been invoked by way of filing an instant applications under Section 439 CrPC at the instance of accused-petitioners. The requisite details of the matter are tabulated herein below:

2. The first and second bail applications of petitioners came to be dismissed as not pressed by this Court vide orders dated 08.12.2023, 24.11.2023 and 15.03.2024 passed in SBCRLMB Nos.9486/2023, 13689/2023, 1362/2024 & 1744/2024. Now, seizing officer has been examined, hence the present third bail application.

3. It is contended on behalf of the accused-petitioners that no case for the alleged offences is made out against them and their incarceration is not warranted. He submits that the contraband was recovered on 28.09.2022 and the samples were taken on that same day, however, the samples were sent for FSL on 11.10.2022 that is after more than 44 days. There are several flaws and laches in the case of the prosecution. There are no factors at play in the case at hand that may work against grant of bail to the accused-petitioners and they have been made accused based on conjectures and surmises.

4. Contrary to the submissions of learned counsel for the petitioner, learned Public Prosecutor opposes the bail application and submits that the recovered contraband is way above the demarcated commercial quantity and therefore, in view of the bar contained under Section 37 of NDPS Act, no case of bail is made out.

5. Have considered the submissions made by both the parties and have perused the material available on record.

6. Perusal of the record revealing that on 28.09.2022 during nakabandi Incharge Sadar Nimbahera intercepted an Alto Car bearing registration No.RJ12 CB3545 near the Wonder Circle. The vehicle was being driven by Lokendra Singh @ Lucky and Praveen Singh @ Chirag was also found sitting there. During search, 5 plastic bags containing poppy husk were recovered. The total weight of these bags was 100 kg. After search and seizure, the petitioners were arrested and seized contraband was marked as A to E but the same were sent to the FSL on 11.10.2022. No inventory was prepared and verified in the presence of the Magistrate as per the provision of Section 52A of the NDPS Act but the samples so verified were not sent for scientific investigation within 72 hours however, the same were actually sent after expiry of a period of approx 44 days were the ones that were drawn at the initial stage of conducting seizure. Not making inventory in accordance with the guidelines issued by the Government vide Standings Order Nos.1/1988 & 1/1989 as well as the mandate of law contained under Section 52-A of the NDPS Act is a serious question which if decided in favour of the accused, then their conviction cannot be made. When there appears reasonable ground to presume that certain infirmity or legal defect would be fatal to the prosecution still not exercising power of granting bail would mean not honoring the guarantee of the Constitution given to every individual regarding protection of their liberty.

7. In a recent judgment titled as Mohammed Khalid and another Vs. The State of Telangana passed by Hon’ble the Supreme Court in Criminal Appeal No(S). 1610 Of 2023 dated 01.03.2024, it was held that since no proceedings were undertaken for preparing of inventory and drawings of samples as per Section 52-A of NDPS Act, thus, the FSL was considered to be waste and was not considered worthy of being read in evidence on the basis of this inter alia other aspects, Hon’ble the Apex Court acquitted the appellants of all charges. The relevant paragraph of the above judgment is reprodu